Licence Appeal Tribunal File Number: 24-003136/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Trevor Brownmiller
Applicant
and
Economical Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Kameliya Stancheva, Paralegal
For the Respondent:
Maia Abbas, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Trevor Brownmiller (the “applicant”) was involved in an automobile accident on December 29, 2022 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Economical Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is:
i. Is the applicant is barred from proceeding with his claim benefits as he failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day?
RESULT
3The applicant is statute-barred from proceeding with his application.
ANALYSIS
Background
4The applicant was involved in an accident on December 29, 2022. The respondent was first notified of the applicant’s intention to seek accident benefits on May 3, 2023 when he submitted his initial application for accident benefits (OCF-1).
The Law
5Section 32 (1) of the Schedule requires an insured person to inform an insurer of their intention to claim accident benefits within seven days of the accident, or as soon as practicable after.
6Section 34 states that if the insured person does not comply with that time limit, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
7Pursuant to section 55(1)1, an insured person may not apply to the Tribunal if they have not notified the insurer of the circumstances giving rise to a benefit or has not submitted an application for the benefit within the times set out in the Schedule.
8The interpretation of “reasonable explanation” is guided by Horvath and Allstate Insurance Company of Canada, FSCO A02-000482, June 9, 2003, and was more recently reiterated in K.H. v. Northbridge, 2019 CanLII 101613 (ON LAT). The guiding principles are summarized as follows:
An explanation must be determined to be credible or worthy of belief before its reasonableness can be assessed.
The onus is on the insured person to establish a “reasonable explanation”.
Ignorance of the law alone is not a “reasonable explanation”.
The test for “reasonable explanation” is both a subjective and objective test that should take account of both personal characteristics and a “reasonable person” standard.
The lack of prejudice to the insurer does not make an explanation automatically reasonable.
An assessment of reasonableness includes a balancing of prejudice to the insurer, hardship to the claimant and whether it is equitable to relieve against the consequences of the failure to comply with the time limit.
9The applicant submits that the injuries he sustained in the accident prevented him from submitting his application. The only evidence upon which the applicant relies is a disability certificate dated May 3, 2023 completed by Dr. S. Jahandideh, chiropractor. It indicates that the applicant was able to return to work on modified hours or duties. The doctor also supported that the applicant sustained a complete inability to carry on a normal life, noting “patient is having difficulties with most ADLs”. However, no injuries are identified on the document. Under Part 5 which would typically identify the injuries and sequelae sustained, the document indicates “please see attached” however there is nothing further provided.
10The applicant has not provided any information regarding what specific injuries he sustained, nor any evidence as to how those injuries prevented the applicant from notifying the respondent about his intention to claim accident benefits within the timelines.
11Therefore, I am not persuaded that the applicant has provided a reasonable explanation for the delay in notifying the respondent of his intention to apply for accident benefits.
12The delay in reporting the claim for accident benefits has prejudiced the insurer by depriving it of the opportunity to obtain contemporaneous information regarding the applicants alleged injuries, to obtain contemporaneous medical documentation, and investigate and assess the applicant’s claim.
13The applicant did not notify the respondent of the accident in accordance with section 32(1) and has not provided a reasonable explanation for the delay. Accordingly, pursuant to section 55(1)1 of the Schedule I find that the applicant is statute barred from proceeding with his application.
ORDER
14The applicant is barred from proceeding with his application pursuant to section 55(1) of the Schedule for failure to comply with the time limits set out in section 32(1).
15The application is dismissed.
16The Tribunal shall vacate any date that has been scheduled for a substantive issue hearing. The Tribunal file will be closed.
Released: November 1, 2024
Kate Grieves
Adjudicator